EMPLOYER DISCRIMINATION; DEFENSES – Other

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An employer cannot establish an affirmative defense based on applying a policy in a manner that infringes on protected rights. (See, e.g., Arrow Elec. Co., Inc. v. National Labor Relations Bd. (6th Cir. 1998) 155 F.3d 762, 766-767 [where employer had policy barring “neglect of duty,” it could not rely on that policy as a non-discriminatory basis for terminating employees, because employees’ alleged neglect was in fact protected strike activity].) (p. 24.)